NOTICES

INDEPENDENT REGULATORY REVIEW COMMISSION

Notice of Comments Issued

[48 Pa.B. 2732]
[Saturday, May 5, 2018]

 Section 5(g) of the Regulatory Review Act (71 P.S. § 745.5(g)) provides that the Independent Regulatory Review Commission (Commission) may issue comments within 30 days of the close of the public comment period. The Commission comments are based upon the criteria contained in section 5.2 of the Regulatory Review Act (71 P.S. § 745.5b).

 The Commission has issued comments on the following proposed regulations. The agency must consider these comments in preparing the final-form regulation. The final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.

Reg. No.	Agency/Title	Close of the Public Comment Period	IRRC Comments Issued
16A-4312	State Board of Chiropractic Chiropractic Specialties 48 Pa.B. 1177 (February 24, 2018)	3/26/18	4/25/18
16A-4626	State Board of Dentistry Child Abuse Reporting Requirements 48 Pa.B. 1179 (February 24, 2018)	3/26/18	4/25/18
7-530	Environmental Quality Board Administration of the Storage Tank and Spill  Prevention Program 48 Pa.B. 1101 (February 24, 2018)	3/26/18	4/25/18

State Board of Chiropractic Regulation # 16A-4312 (IRRC # 3197)

Chiropractic Specialties

April 25, 2018

 We submit for your consideration the following comments on the proposed rulemaking published in the February 24, 2018 Pennsylvania Bulletin. Our comments are based on criteria in Section 5.2 of the Regulatory Review Act (71 P.S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P.S. § 745.5a(a)) directs the State Board of Chiropractic (Board) to respond to all comments received from us or any other source.

1. Scope of Practice.—Consistency with statute; Protection of the public health, safety and welfare.

 This regulation addresses advertising of specialties. In the Preamble, the Board states:

The Board is aware that a chiropractor might obtain a ''certification'' that does not truly reflect genuine advanced knowledge, training or skill, but instead is rather easily obtained. Unfortunately, the public, not knowing what certifications are meaningful, may be confused or deceived by the advertising of these credentials. . . . Because § 5.31(c)(5) already specifically addresses the advertising of chiropractic specialties, it appears appropriate to amend that provision to create a brighter line rule in the advertising of professional credentials.

 This proposed regulation deletes the definition of ''Chiropractic specialty'' and amends a subparagraph on professional advertising requirements. However, the Board's regulation does not comprehensively address practice relating to specialty certifications that do not meet the existing definition of ''Chiropractic specialty.''

 The Chiropractic Practice Act (Act) establishes that it is a violation for a chiropractor to hold ''himself out as a specialist unless he possesses a post graduate certification in that specialty.'' Violations relating to specialties are serious offenses that potentially result in revocation of a license, fines and imprisonment. See 63 P.S. §§ 625.506(a)(17) and 625.702(12). Relating to specialties, the Act does not define the key terms ''specialist,'' ''specialty'' or ''post graduate certification.'' Under 63 P.S. § 625.302(3) of the Act, the Board has the power and duty ''to promulgate, adopt and enforce in the manner provided by law, the rules and regulations necessary to carry out this Act.'' We believe it is in the best interests of the public, licensed chiropractors and the Board to establish in regulation what the terms ''specialist,'' ''specialty'' and ''post graduate certification'' mean and to clearly establish when a violation of the Act occurs.

 The Act and the Board's regulation are much more prescriptive and clear relating to adjunctive procedures and certification. The Act defines ''adjunctive procedures'' at 63 P.S. § 625.102 and addresses certification to use them at 63 P.S. § 625.304, including requirements to pass an examination on the use of adjunctive procedures and to complete 100 hours of study in the use of adjunctive procedures, as approved by the Board. Under its existing regulation in 49 Pa. Code Chapter 5, the Board specifies certification to use adjunctive procedures (§ 5.14) and includes on the list of unprofessional conduct practicing or advertising adjunctive procedures without a certificate to use adjunctive procedures issued by the Board (§ 5.81(1)(xiv)). Shouldn't the practice of a specialty warrant similar provisions in regulation?

 Upon review of the Act and the proposed regulation, we question how the regulation adequately protects the public from a chiropractor practicing a specialty based on attaining what the Board considers to be invalid training to qualify as a specialist. The Act specifies serious penalties for practicing a specialty without proper certification, but we believe delegates authority to the Board to establish in regulation the details of a proper certification to carry out the Act. Therefore, the Board's regulation should establish what a specialty is, how a chiropractor can qualify as a specialist and what constitutes a violation in practice and professional advertising.

 Given that these subject areas were not included in the proposed regulation, and therefore there was no opportunity for public comment on these issues, we recommend that the Board withdraw this regulation. We further recommend that the Board draft a new proposed regulation in consultation with the regulated community that comprehensively addresses specialty practices, patient safety and advertising.

 If the Board does not withdraw the regulation, we submit the following comments on the proposed regulation.

2. Existing specialty certifications.—Economic impact; Reasonableness.

 In the Regulatory Analysis Form (RAF), the Board repeatedly states it does not expect this rulemaking will have any financial, economic or social impact. However, the regulation limits specialties to those endorsed by the American Board of Chiropractic Specialties (ABCS). Public commentators said they hold valid specialty certifications that were earned from organizations other than ABCS and meet the same criteria as ABCS. The proposed regulation would exclude them from advertising their specialties. Therefore, we question how the regulation would not impact these individuals and why this impact was not included in the RAF responses.

3. Section 5.1. Definitions.—Consistency with statute; Need; Clarity.

 The Board proposes to delete the definition of ''Chiropractic specialty.'' The Preamble explains that this definition is unnecessary. We disagree for two reasons. First, the term ''specialty'' is used several times in the statute, but is not defined in the statute. See 63 P.S. §§ 625.506(a)(17) and 625.702(12). Therefore, the Board should establish in regulation it's interpretation of this term. Second, since this term is used in existing Subsection 5.31(a), deleting the term from the definitions would make Subsection 5.31(a) unclear. We recommend maintaining this term in the regulation, with amendments as needed to address the issues raised by commentators as noted below.

4. Section 5.31. Professional advertising.—Economic impact; Reasonableness.

 Paragraph (c)(5) is proposed to be amended to rely on ''certification or diplomate status in that specialty from a board recognized by the American Board of Chiropractic Specialties.'' In the Preamble, the Board lists numerous specialties recognized by ABCS. The Board further explains that these specialty boards require passing a certification examination after a full-time residency of at least three years or a part-time residency of more than 300 hours of education and clinical practice.

 We received ten public comments that were submitted during the public comment period either representing chiropractic associations or individual chiropractors. All of these comments oppose limiting advertisement of specialties to those recognized by ABCS. Generally, these comments outline many other certifications and diplomate programs they believe should qualify for specialty certification. Several are concerned that certifications earned in the past would be negated by the proposed regulation. The Pennsylvania Chiropractic Association (PCA) does not support the proposed regulation and believes it will confuse the public. The International Chiropractors Association (ICA) does not support the proposed regulation and objects to the ''arbitrary and unwarranted exclusion'' of ICA certifications. Both PCA and ICA recommend that the Board draft and submit a revised proposed regulation.

 While the Board provided details of the numerous certifications available under ABCS, it did not explain why it chose to only accept ABCS certifications or why other certifications should be excluded. The public commentators state there are other certifications that are equivalent and should be acceptable. We are concerned that the regulation, as written, would impose a hardship on chiropractors who may currently hold valid specialty certifications. We recommend that the Board meet with the commentators to gain a better understanding of their existing specialty certifications, as well as programs other than ABCS that offer valid specialty certifications. We also recommend that the Board work with the regulated community to draft and submit a revised proposed regulation that addresses the issues raised by commentators.

State Board of Dentistry Regulation # 16A-4626 (IRRC # 3198)

Child Abuse Reporting Requirements

April 25, 2018

 We submit for your consideration the following comments on the proposed rulemaking published in the February 24, 2018 Pennsylvania Bulletin. Our comments are based on criteria in Section 5.2 of the Regulatory Review Act (Act) (71 P.S. § 745.5b). Section 5.1(a) of the Act (71 P.S. § 745.5a(a)) directs the State Board of Dentistry (Board) to respond to all comments received from us or any other source.

1. Section 33.1. Definitions.—Clarity and lack of ambiguity.

Perpetrator

 The term perpetrator is being deleted because the Board says it is no longer used in the regulations. However, the term perpetrator is part of the proposed definition of serious physical neglect as taken directly from the Child Protective Services Law (CPSL). The Board should either keep the defined term perpetrator in the final regulation or revise the definition of serious physical neglect not to include the use of perpetrator.

Child abuse

 The Board is amending the definition of child abuse to comport with amendments made to the CPSL. However, we note that the proposed definition varies from the CPSL. Specifically, Section 6303(b.1)(8)(ii) of the CPSL states, ''unreasonably restraining or confining a child, based on consideration of the method, location or the duration of the restraint or confinement'' whereas the equivalent definition in Clause (viii)(B) only states ''unreasonably restraining or confining a child.'' 23 Pa.C.S. § 6303(b.1)(8). Similarly, the phrase ''provided that the violation is being investigated by law enforcement'' was not carried over from Section 6303(b.1)(8)(vi) of the CPSL to Clause (viii)(F) in the proposed regulation. Additionally, we note that Section 6303(b.1)(8)(vii)(D) of the CPSL is not included at all in the proposed regulation. In response to Regulatory Analysis Form Question # 10, the Board states that the regulation is needed because ''licensees will further benefit from regulations that are consistent with the CPSL, as amended, to avoid confusion as to their responsibilities in this area.'' Since the Board is amending the regulation for consistency with the CPSL, we ask the Board to explain why these portions of the CPSL aren't carried over in the final regulation. Additionally, where the Board is amending the final regulation to comport with the CPSL, the Board should ensure that the final regulation is consistent with the CPSL.

2. Section 33.401. Credit-hour requirements.—Conforms to the intention of the General Assembly.

 Subsection (h) requires all licensees and certificateholders to complete two of the required hours of continuing education in approved courses on child abuse recognition and reporting as set forth in Section 33.256 (relating to child abuse recognition and reporting—mandatory training requirement). Section 122(j) of The Dental Law (Law) states that the Board shall have the powers and duties ''to suspend or revoke the license or certificate of such persons as fail, refuse or neglect to renew biennially, comply with the requirements of subsection (j.2), or pay the appropriate fee.'' 63 P.S. § 122(j). Section 122(j.2)(2) addresses credit hours requirements that ''shall be satisfactorily completed in accordance with board regulations as a precedent to biennial renewal of a license or certification. . . .'' In other words, the Law requires completion of the required hours of continuing education in approved courses on child abuse recognition and reporting before a license or certificate can be renewed.

 Our concern is that the proposed regulation does not provide direct notice that if the continuing education requirement for child abuse recognition and reporting is not met, a license or certificate cannot be renewed. Direct and clear notice in the wording of the regulation will benefit both the Board and regulated community in obtaining compliance. Clear notice can also avoid the expense of the Board taking action against a licensee or certificateholder and the potential loss of income for the licensee. Therefore, while the intent and actions of the Board may be not to renew, we recommend that clear notice be provided in the final regulation that the Board will not renew a license or certificate if the licensee or certificateholder fails to complete the continuing education required by the Law.

Environmental Quality Board Regulation # 7-530 (IRRC # 3199)

Administration of the Storage Tank and Spill Prevention Program

April 25, 2018

 We submit for your consideration the following comments on the proposed rulemaking published in the February 24, 2018 Pennsylvania Bulletin. Our comments are based on criteria in Section 5.2 of the Regulatory Review Act (71 P.S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P.S. § 745.5a(a)) directs the Environmental Quality Board (EQB) to respond to all comments received from us or any other source.

1. Need; Fiscal impact.

 This comprehensive proposed rulemaking amends numerous sections of 25 Pa. Code Chapter 245, relating to the administration of the storage tank and spill prevention program. Many of the changes are driven by 2015 amendments to the U.S. Environmental Protection Agency's (EPA) regulations for underground storage tanks (USTs). As explained by EQB, Chapter 245 must be updated to be no less stringent than the revised federal requirements so the Department of Environmental Protection (DEP) can apply for revised state program approval from EPA.

 Commentators have expressed their general support for EQB's effort to align Chapter 245 with the revised federal requirements. However, concerns have been raised about new notification, reporting and paperwork requirements. Amendments to existing forms and the addition of new forms have also been identified as an area of concern. It is unclear to the commentators if the additional regulatory burdens imposed by the proposed amendments will produce additional environmental benefits. In addition, commentators believe that EQB has not properly quantified the costs associated with the new notification, reporting and paperwork requirements.

 As EQB moves forward with this regulatory proposal, we ask that it work with the regulated community to gain an understanding of the potential costs associated with the new regulatory requirements that are being imposed. When the final-form regulation is submitted to this Commission, we request that EQB include an explanation of how the additional regulatory requirements will assist DEP with its mission of protecting the environment. We also ask EQB to quantify the costs associated with complying with the new or revised requirements.

Subchapter A. GENERAL PROVISIONS

2. Section 245.1. Definitions.—Statutory authority; Consistency with the intent of the General Assembly; Reasonableness; Implementation procedures; Clarity.

Release and Reportable release

 EQB proposes to amend the definition of ''release'' and to delete the definition of ''reportable release.'' These amendments have generated interest from the regulated community. They believe the changes will require the reporting of every spill into emergency and secondary containment structures as a ''release'' and argue that a spill into a secure containment area is not necessarily a threat to the environment. They contend that the revisions would trigger new reporting, corrective action and other obligations that are not necessary for the protection of human health or the environment. In addition, commentators contend that these amendments conflict with the statutory definition of ''release'' found in Section 103 the Storage Tank and Spill Prevention Act (35 P.S. § 6021.103) and the intention of the General Assembly.

 We have several questions about these amendments and the issues raised by commentators. First, are these amendments needed to align Chapter 245 with EPA amendments to its UST regulations? Second, why does EQB believe the amendments being proposed are consistent with the statutory definition of ''release'' and the intention of the General Assembly? Third, what is the need for the changes? Are the existing requirements allowing spills to reach the environment and causing harm? Finally, will the amendments require additional reporting and corrective action for spills into emergency and secondary containment structures? If yes, what are the differences between existing requirements and the new requirements? We will review EQB's responses to these questions in determining whether the rulemaking is in the public interest.

Underground storage tank

 EQB is proposing to amend this definition by deleting two exclusions and modifying other exclusions. Commentators are concerned that the deletion of existing Paragraphs (xiii) and (xviii) and the replacement of those exclusions with partial exclusions in § 245.302(c)(2) and (3) would create inconsistencies between Chapter 245 and federal regulations for nuclear-related storage tanks. We ask EQB to explain why the changes being proposed are needed and how they are consistent with and not more stringent than the federal regulation on this subject matter.

 Another concern relates to the amended exclusion for wastewater treatment tanks found under renumbered Paragraph (xiii). The new language being added will limit exclusions to wastewater tank systems that are part of a water treatment facility under certain sections of Clean Water Act. Similar to above, we ask EQB why the changes to this paragraph are needed and how it is consistent with federal regulations.

Subchapter B. CERTIFICATION PROGRAM FOR INSTALLERS AND INSPECTORS OF STORAGE TANKS AND STORAGE TANK FACILITIES

3. Section 245.132. Standards of performance.—Reasonableness; Implementation procedures; Clarity.

 This section establishes standards of performance for certified companies, certified installers and certified inspectors. Amendments to Subsections (a)(4) and (6) would require those parties to report to DEP the observance of a regulated substance in a containment structure or facility. A commentator states that such a release is not necessarily a threat to the environment. We ask EQB to explain the need for and reasonableness of the new language being added to these subsections.

Subchapter D. CORRECTIVE ACTION PROCESS FOR OWNERS AND OPERATORS OF STORAGE TANKS AND STORAGE TANK FACILITIES AND OTHER RESPONSIBLE PARTIES

4. Section 245.302. Scope.—Clarity.

 EQB is adding the phrase ''suspected release investigation'' to § 245.301, relating to purpose. For consistency we suggest the term ''suspected release'' be added to this section of the regulation.

5. Section 245.304. Investigation of suspected releases.—Implementation procedures; Clarity.

 This section requires owners or operators of tank systems and facilities to investigate suspected releases of regulated substances. Subsection (a) specifies what constitutes an indication of a release. Subsection (a)(6) is being amended to include the discovery of ''damage'' to a storage tank system. A commentator believes this addition is vague, and as an example, asks if chipped paint would be considered damage. We ask EQB to explain how it will implement this provision in the Preamble to the final-form regulation and clarify Subsection (a)(6) accordingly in the final-form regulation.

6. Section 245.305. Reporting releases.—Reasonableness.

 This section specifies procedures to be followed after the confirmation of a release. New Subsection (i) identifies types of releases that do not need to be reported to DEP. Commentators believe the exemptions are narrow and do not properly consider the actual threat to the environment. Why did EQB adopt this approach, which relies on reportable quantities, compared to an approach that would allow the owner or operator of a storage tank system or storage tank facility to evaluate the actual threat to the environment? EQB should explain the reasonableness of this approach in the Preamble to the final-form regulation.

Subchapter E. TECHNICAL STANDARDS FOR UNDERGROUND STORAGE TANKS

7. Section 245.403. Applicability.—Reasonableness; Implementation procedures.

 Under Subsection (d), EQB is adding a requirement that UST systems that were previously excluded from registration with DEP be registered within 30 days of the effective date of this rulemaking. A commentator has stated that it may be difficult to obtain the necessary information to register a tank in that time period and has suggested 60 days as an alternative. We ask EQB to address the reasonableness of the proposed 30-day time period compared to the 60-day time period suggested by the commentator.

8. Section 245.433. Compatibility.—Reasonableness; Implementation procedures; Clarity.

 This section requires owners or operators to use USTs that are made or lined with material that is compatible with the substance being stored. We have two concerns. First, new Subsection (b) will require an owner or operator of a UST storing alternative fuel blends or biodiesel or biodiesel blended fuel to provide certain information to DEP. A commentator notes that the term ''alternative fuel blends'' is not defined and also asks if DEP will consider all diesel fuel to be biodiesel fuel. To improve the clarity of the regulation, we ask EQB to define the term ''alternative fuel blends.'' We also ask EQB to clarify whether all diesel fuel would be considered biodiesel fuel.

 Second, a commentator believes the new requirements found in Subsection (c) are more stringent that the federal requirements found at 40 CFR § 280.32(b) because the federal requirements only apply to USTs containing greater than 10% ethanol and 20% biodiesel fuel. They note it will be difficult to produce the required documentation for older UST systems, and this could lead to the decommissioning of tanks. We note that Subsection (c) only requires the submittal of the information to demonstrate compatibility upon the request of DEP. How will DEP implement this provision? Under what circumstance would DEP require the information? Would it apply to all USTs? If Subsection (c) is more stringent that the federal requirement, what is the need for it? We ask EQB to address these questions in the Preamble to the final-form rulemaking.

9. Section 245.445. Methods of release detection for piping.—Implementation procedures.

 Proposed amendments to Subsection (1)(iii) impose new requirements for unattended UST systems using pressurized piping installed on or before November 10, 2007. A commentator has requested that the implementation of this provision be delayed one or two years for existing UST systems. How will DEP implement this provision? Would a one or two year grace period, as requested, pose an immediate harm or threat to the environment? We ask EQB to consider this suggestion as it develops the final-form regulation.

Subchapter F. TECHNICAL STANDARDS FOR ABOVEGROUND STORAGE TANKS AND FACILITIES

10. Section 245.512. Facility operations and spill response plan.—Implementation procedures; Clarity.

 This section is being amended to require Spill Prevention Response Plan revisions to be submitted to DEP within 120 days of any necessary updates to the plan. Would the owner or operator of an aboveground storage tank (AST) facility have to submit the entire plan or just revisions to DEP? This should be clarified in the final-form regulation.

 In addition, a commentator has requested that the 120 day mandate be extended to 180 days. This requirement also appears in § 245.603, relating to general storage tank facility requirements. If extending the time frame for submitted revisions would not pose a harm or threat to the environment, we ask DEP to provide the regulated community this additional time for compliance.

11. Section 245.514. Security.—Reasonableness; Implementation procedures.

 EQB is codifying a best management practice that requires owners and operators of certain AST facilities to maintain a written log book. Commentators have asked if the log book they currently maintain as part of their existing best management practice would satisfy the requirement of this section. They also ask if the log book can be in an electronic format and then printed as needed. Similar concerns have been expressed with § 245.603. We ask EQB to explain how this provision will be implemented and to implement the least burdensome alternative for the regulated community while ensuring the proper protection of the environment.

12. Section 245.516. Recordkeeping requirements.—Reasonableness.

 Under Subsection (c)(15) owners and operators of ASTs will be required to keep documentation of investigations of suspected releases. A commentator has asked what the rationale for this new requirement is if the investigation finds that no release occurred. Similar language can be found under § 245.615(b)(7). In the Preamble to the final-form regulation, we ask EQB to explain why it needs this information.

13. Section 245.531. General corrosion and deterioration requirements.—Implementation procedures; Fiscal impact; Clarity.

 This existing section requires AST systems to be protected from corrosion and deterioration. EQB explains that proposed amendments are intended to clarify existing requirements. Commentators are concerned that the proposed amendments will impose new, potentially costly requirements. Specifically, they are concerned with new language that would require tank bottoms not adequately protected from corrosion and deterioration to be replaced immediately instead of at the next ''out of service'' inspection. They also ask if corrosion protection for tanks on concrete pads is needed. We ask EQB to explain if the amendments being proposed are new requirements, and if so, to explain the need for the revisions. If the requirements are new, we ask EQB to quantify the costs associated with the amendments.

Subchapter G. SIMPLIFIED PROGRAM FOR SMALL ABOVEGROUND STORAGE TANKS

14. Section 245.612. Performance and design standards.—Reasonableness; Implementation procedures.

 Subsection (d)(1) is being amended to require permanently installed spill protection equipment at the tank fill point. A commentator notes that they use temporary spill buckets and believe the amendment is a new requirement that would be costly and provide little environmental benefit. We ask EQB to explain how DEP administers the existing regulation and if the proposed amendment will require the regulated community to change their procedures related to spill buckets. If the requirements are new, we ask EQB to quantify the costs and to consider a window of time for the regulated community to come into compliance with the new standard.

GEORGE D. BEDWICK, 
Chairperson

[Pa.B. Doc. No. 18-701. Filed for public inspection May 4, 2018, 9:00 a.m.]

---

No part of the information on this site may be reproduced for profit or sold for profit.

This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.

---